Amicus Curiae Brief — Lynce v. Mathis

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QUESTION PRESENTED

During the years 1988-1993, provisional credits, a form of

“gain time” intended solely to relieve prison overcrowding,

was awarded to Florida inmates. Between 1988 and 1991, the

petitioner was given 1,860 days of provisional credits. Then

in 1992, the Florida Legislature amended the provisional

credits statute to exclude from eligibility a class of more

violent offenders, including Petitioner. The question pre-

sented is whether that amendment violated the ex post facto

clause of the U.S. Constitution.

TABLE OF AUTHORITIES

Case(s) Page(s)

Beazell v. Ohio, 269 U.S. 167, 46 S. Ct. 68,

I 6

Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861,

60 L. Ed. 2d 447(1979)............ 10, 13, 14

Calder v. Bull, 3 Dall. 386, 1 L. Ed. 648 (1798) ...... 5

California Department of Corrections v. Morales,

514US.__, 131 L. Ed. 2d 588, 115 S. Ct. 1597

CR ele oie eee ee ee a ke 7

Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715,

ese § |) 5, 7, 10

De Veau v. Braisted, 363 U.S. 144, 80 S. Ct. 1146,

Gia pS occ ccccccccccecese 4

Griffin v. Singletary, 638 So.2dat500 .......... 4

Kennedy v. Mendoza-Martinez, 372 US. 144,

83 S. Ct. 554, 9 L. Ed. 2d 644(1963) ........ 10

Kring v. Missouri, 107 US. 221, 2 S. Ct. 443,

NG a a 10

Lewis v. Casey, _US.___, 116 S. Ct. 2174

Dette ss sks eh eee de eek eee 12

Lindsey v. Washington, 301 U.S. 397, 81 L. Ed. 1182,

ee ee er Bh 7

Miller v. Florida, 482 U.S. 423, 107 S. Ct. 2446,

Ee ee 5

Pell v. Procunier, 417 U.S. 817, 94 S. Ct. 2800

eee a OS oe o a's ho ee eee ota sé ee et 14

Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800

EAA nt hein! eth En ne te te ae kh oh at 14

Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254 (1987) . . 13

United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892,

SUD GEE oN wecccccseceees 9

Case(s)

Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960,

67 L. Ed. 2d 17 (1981)

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iv

No. 95-7452

IN THE

Supreme Court of the United States

October Term, 1995

KENNETH LYNCE,

Petitioner,

v.

HAMILTON MATHIS, ROBERT A. BUTTERWORTH,

AND HARRY K. SINGLETARY,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

BRIEF OF AMICUS CURIAE ON THE MERITS IN

SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

Numerous states across the country have adopted various

mechanisms to provide some relief to their prison overcrowd-

ing problems. These efforts have met with varying results

through use of these mechanisms—some mechanisms have

resulted in loss of innocent life by violent offenders released

too early. These losses have resulted in further amendments

to the prison overcrowding mechanisms. Many of these amend-

ments, such as that to Florida’s provisional credit statute,

have been met with ex post facto challenges. The States joined

herein as amicus curiae urge this Court to follow the “pur-

pose and effect” analysis of Morales when reviewing these

prison overcrowding mechanisms. Review of these amend-

ments to early release mechanisms should recognize the

states’ legitimate penological interest in controlling prison

overcrowding while protecting the security of its citizens.

Accordingly, the amici states would further urge this court to

revisit the line of “early release” cases including Weaver v.

Graham, and to consider these cases under a test which

would give deference to the states power to control prison

overcrowding.

SUMMARY OF ARGUMENT

This case involves amendment of a remedial statute which

was adopted by the legislature to provide the Department of

Corrections with an emergency mechanism which could be

utilized by the Department, with the approval of the Gover-

nor, to reduce prison overcrowding in times when the other

mechanisms were unsuccessful in reducing the prison popu-

lation to the federally mandated level. Petitioner challenges

this statute as violative of the ex post facto clause. The amici

states would submit that the Florida provision does not alter

the definition of criminal conduct or increase the penalty by

which a crime is punishable so as to violate the ex post facto

clause. The provisional credit statute is a remedial statute

aimed at controlling prison overcrowding and the award of

such credits in no sense is tied to any aspect of the original

sentence and cannot possibly be a factor at sentencing or in

deciding to enter a plea bargain and creates only the most

speculative and attenuated risk of increasing the measure of

punishment attached to the covered crimes.

The provisional credits at issue in the instant case is

distinguishable from the gain time at issue in Weaver v.

Graham. Unlike the gain time in Weaver, the award of provi-

sional credits is not mandatory and the inmate, at the time

he creates his crime or is sentenced, has no right to or

expectation of such an award of provisional credits. The

award of provisional credits is a discretionary, emergency

mechanism which will only be awarded if certain conditions

occur and the Department, with the approval of the Gover-

nor, determines such gain time should be awarded. The

award to Petitioner of such gain time was only through an

—

erroneous interpretation of the statute by the Department of

Corrections. This error was subsequently corrected by an

opinion of the Florida Attorney General which was later

affirmed by the legislature in an amendment to the provi-

sional credit statute. This amendment resulted in the correc-

tion of Petitioner’s release date. The amendment did not

increase Petitioner’s sentence; it merely restored the status

quo as it existed at the time he committed his crime and was

sentenced.

Although this overcrowding mechanism is distinguishable

from the gain time discussed in Weaver v. Graham, the amici

states would ask this Court to revisit Weaver and its progeny.

The purpose and effect of the gain time statutes at issue in

these cases should be considered with deference given to the

right of the states to manage and control their criminal

justice systems and prisons. The states have a legitimate

penological interest in amending their gain time statutes

where they do not reflect the legislative intent and result in

release of violent prisoners whose early release threatens the

safety of the citizens of these states. Accordingly, the amici

states would ask this court to adopt a test which recognizes

the deference given to states in such matters and looks to the

purpose as well as the effect of the statute.

ARGUMENT

This case involves amendments to a remedial statute which

was adopted by the legislature to provide the Department of

Corrections with an emergency mechanism which could be

utilized by the Department, with the approval of the Gover-

nor, to reduce prison overcrowding in times when the other

mechanisms were unsuccessful in reducing the prison popu-

iation to the federally mandated level. Petitioner challenges

this statute as violative of the ex post facto clause. The amici

states would submit that the Florida provision does not alter

the definition of criminal conduct or increase the penalty by

which a crime is punishable so as to violate the ex post facto

clause. The provisional credit statute is a remedial statute

aimed at controlling prison overcrowding and the award of

such credits in no sense is tied to any aspect of the original

sentence and cannot possibly be a factor at sentencing or in

deciding to enter a plea bargain. The statute creates only the

most speculative and attenuated risk of increasing the meas-

ure of punishment attached to the covered crimes.

In the instant case, the issue concerns a statute which

neither makes criminal that which was previously innocent

nor takes away defenses which a criminal defendant had

available at the time he committed his crime. The issue here

is whether this prison overcrowding statute, intended merely

by the state as a discretionary, emergency mechanism to

relieve prison overcrowding, should be viewed as a penal

statute merely because of the incidental effect it may have

on some inmates and their subjective interpretation of the

statute.

The Florida Supreme Court discussed the purpose of this

provisional credit statute as follows:

—)

(T}he state’s unilateral decision to restrict the

“provisional credit” does not trigger the consti-

tutional issues that would be present if some

othér forms of credits or gain time were at

stake. The reason is that provisional credits

are not a reasonably quantifiable expectation

at the time an inmate is sentenced. Rather,

provisional credits are an inherently arbitrary

and unpredictable possibility that is awarded

based solely on the happenstance of prison

overcrowding. Thus, provisional credits in no

sense are tied to any aspect of the original

sentence and cannot possibly be a factor at

sentencing or in deciding to enter a plea bar-

gain.

Griffin v. Singletary, 638 So.2d at 500 (Fla. 1994).

In Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111

L.Ed.2d 30 (1990), this Court reviewed the history of the ex

post facto clause, noting that:

Although the Latin phrase “ex post facto” lit-

erally encompasses any law passed “after the

fact,” it has long been recognized by this Court

that the constitutional prohibition on ex post

facto laws applies only to penal statutes which

disadvantage the offender affected by them.

Calder v. Bull, 3 Dall. 386, 390-392, 1 L.Ed.

648 (1798) (opinion of Chase, J.); id., at 396

(opinion of Paterson, J.); id. , at 400 (opinion

of Iredell, J.). See Miller v. Florida, 482 U.S.

423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351

(1987). (FN2) As early opinions in this Court

explained, “ex post facto law” was a term of

art with an established meaning at the time of

the framing of the Constitution. Calder, 3 Dall.,

at 391 (opinion of Chase, J.); id., at 396 (opin-

ion of Paterson, J.). Justice Chase’s now familiar

opinion in Calder expanded those legislative

Acts which in his view implicated the core

concern of the Ex Post Facto Clause:

“Ist. Every law that makes an action

done before the passing of the law, and

which was innocent when done, criminal;

and punishes such action. 2d. Every

law that aggravates a crime, or makes

it greater than it was, when committed.

3d. Every law that changes the punish-

ment, and inflicts a greater punishment,

than the law annexed to the crime,

when committed. 4th. Every law that

alters the legal rules of evidence, and

receives less, or different, testimony

than the law required at the time of the

commission of the offense, in order to

convict the offender.” Id., at 390 (em-

phasis in original).

Collins, 110 S.Ct. at 2718.

This Court noted that the principles of ex post facto are so

well established that in Beazell v. Ohio, 269 U.S. 167, 46 S.Ct.

68, 70 L.Ed. 216 (1925), the Court was able to confidently

summarize the meaning of the Clause as follows:

“It is settled, by decisions of this Court so well

known that their citation may be dispensed

with, that any statute which punishes as a

crime an act previously committed, which was

innocent when done; which makes more bur-

densome the punishment for a crime, after its

commission, or which deprives one charged

with crime of any defense available according

to law at the time when the act was commit-

ted, is prohibited as ex post facto.”

Id., at 169-170, 46 S.Ct. at 68.

Applying these holdings to the instant case, it is clear that

the statute in question does not violate the ex post facto

clause. The statute does not make criminal that which was

previously an innocent act, it does not take away any defense

previously available to the inmate, and it does not make more

burdensome the punishment for the crime. At the time of the

inmate’s offense, he has no expectation of or right to any

provisional credits. The granting of provisional credits is not

tied to any aspect of his sentence and may only be granted at

some time in the future at the discretion of the Department

and Governor if various factors occur. Not only is there no

expectation but there is no increase of the sentence. If such

credits are granted during the inmate’s course of incarcera-

tion and then taken away, the sentence is not increased, it

merely restores the status quo.

})

y)

§)

_

Petitioner argues that this remedial statute is an ex post

facto violation because it “disadvantages” or “alters to the

detriment” the sentence of the inmate. Petitioner cites a line

of cases, including Weaver v. Graham, 450 U.S. 24, 101 S.Ct.

960, 67 L.Ed.2d 17 (1981),! in support of his analysis. How-

ever, the Supreme Court has rejected such arguments. Last

year, in California Department of Corrections v. Morales, 514

US. __, 131 L.Ed.2d 588, 115 S.Ct. 1597 (1995), this Court

reviewed an ex post facto challenge to a California statute and

noted:

Our opinions in Lindsey, Weaver, and Miller

suggested that enhancements to the measure

of criminal punishment fall within the ex post

facto prohibition because they operate to the

“disadvantage” of covered offenders. See

Lindsey, 301 U.S. at 401, 81 L.Ed. 1182, 57

S.Ct. 797; Weaver, 450 U.S. at 29, 67 L.Ed.2d

17, 101 S.Ct. 960; Miller, 482 US. at 433, 96

L.Ed.2d 351, 107 S.Ct. 2446. But that lan-

guage was unnecessary to the results in those

cases and is inconsistent with the framework

developed in Collins v. Youngblood , 497 U.S.

37, 41, 111 L.Ed. 2d 30, 110 S.Ct. 2715 (1990).

After Collins, the focus of the ex post facto

inquiry is not on whether a legislative change

produces some ambiguous sort of “disadvan-

tage,” nor, as the dissent, seems to suggest, on

whether an amendment affects a prisoner’s

“opportunity to take advantage of provisions

1 Weaver is distinguishable from the instant case because it involved

a mandatory early release formula which was awarded upon the inmates

commitment to the Department of Corrections. The provisional credit

provision is an emergency remedial statute which grants the Department

of Corrections, with the approval of the Governor, a mechanism to reduce

prison overcrowding when the other mechanisms have failed to reduce the

prison population to an acceptable level.

for early release,” see post, at _, 131 L.Ed.

2d, at 602, but on whether any such change

alters the definition of criminal conduct or

increases the penalty by which a crime is pun-

ishable.

Id. at 131 L.Ed.2d at 595 (F'N3).

The amendment to Florida’s provisional credit statute does

not alter the definition of criminal conduct, nor does it

increase the penalty by which acrime is punishable. It merely

makes certain classes of violent inmates ine’igible for this

credit if awarded to reduce prison overcrowding. Although

Petitioner argues that his sentence was increased, the amend-

ment did not increase the penalty attached to the crime when

committed, it merely restored the status quo for these violent

inmates.

The Morales Court distinguishes the holding in Lindsey

and Weaver, noting that the statutes at issue in those cases

had the purpose and effect of enhancing available prison

terms, whereas “the evident focus of the California amend-

ment in Morales was merely ‘to relieve the [Board] from the

costly and time-consuming responsibility of scheduling pa-

role hearings’ for prisoners who have no reasonable chance

of being released.” Id. at 131 L.Ed.2d at 596. (Emphasis

added) (Citations omitted) This Court stated that “[gliven

these circumstances, we conclude that the California legisla-

tion at issue creates only the most speculative and attenuated

risk of increasing the measure of punishment attached to the

covered crimes.” Id. at 131 L.Ed.2d at 599.

Petitioner wants this Court to focus merely on the ultimate

effect of the statute without consideration of the purpose and

mechanism of the statute. The amici states would ask this

Court to follow the purpose and effect analysis set forth in

Morales in considering whether this statute should be viewed

as penal. Such a position is consistent with the long history

ee

of the Court’s consideration of the Ex Post Facto Clause as

illustrated by the following cases.

In De Veau v. Braisted 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d

1109 (1960), the Court upheld, against bill of attainder and

ex post facto challenges, a law forbidding certain unions

employing former felons from collecting dues. In effect, the

law barred convicted felons from working on the New York

and New Jersey waterfront. In so holding, the Court noted:

“(t]he question in each case where unpleasant consequences

are brought to bear upon an individual for prior conduct, is

whether the legislative aim was to punish that individual for

past activity, or whether the restriction of the individual

comes about as a relevant incident to a regulation of a present

situation, such as the proper qualifications for a profession.”

Id. At 160. (Emphasis added)

“The proof is overwhelming, “ the Court continued, “that

New York sought not to punish ex-felons, but to devise what

was felt to be a much-needed scheme of regulation of the

waterfront, and for the effectuation of that scheme it became

important whether individuals had previously been con-

victed of a felony.” Id.

Twenty years later, in United States v. Halper, 490 U.S. 435,

109 S.Ct 1892, 104 L.Ed.2d 487 (1989), this Court again

considered the issue of punishment in the context of Double

Jeopardy, and held:

To that end, the determination whether a

given civil sanction constitutes punishment in

the relevant sense requires a particularized

assessment of the penalty imposed and the

purposes that the penalty may fairly be said to

serve. Simply put, a civil as well as a criminal

sanction constitutes punishment when the sanc-

tion as applied in the individual case serves the

goals of punishment.

These goals are familiar. We have recognized

in other contexts that punishment serves the

twin aims of retribution and deterrence. See,

e.g., Kennedy t. Mendoza-Martinez, 372 U.S.

144, 168, 83 S.Ct. 554, 567, 9 L.Ed.2d 644

(1963) (these are the “traditional aims of pun-

ishment”). Furthermore, “[(rjetribution and

deterrence are not legitimate nonpunitive gov-

ernmental objectives.” Bell v. Wolfish, 441 U.S.

520, 539, n.20, 99 S.Ct. 1861, 1874, n.20 (1979).

From these premises, it follows that a civil

sanction that cannot fairly be said solely to

serve a remedial purpose, but rather can only

be explained as also serving either retributive

or deterrent purposes, is punishment, as we

have come to understand the term. We therefore

hold that under the Double Jeopardy Clause a

defendant who already has been punished in

a criminal prosecution may not be subjected

to an additional civil sanction to the extent

that the second sanction may not fairly be

characterized as remedial, but only as a deter-

rent or retribution.

Id. at 109 S.Ct. at 1902.

Petitioner argues that Florida’s provisional credit statute

creates an ex post facto violation because it disadvantages

Petitioner or “alters to the detriment” his sentence. This

theory of disadvantage at one time was adopted in Kring v.

Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L. Ed. 506 (1883).

However, this Court rejected Petitioner’s theory in Collins v.

Youngblood, _ US. ___, 110 S.Ct. 2715 (1990), and clarified

the concept of punishment. The Court stated:

This analysis is consistent with the Beazell

framework. A law that abolishes an affirm-

ative defense of justification or excuse contra-

venes Art. I. § 10, because it expands the scope

10

of a criminal prohibition after the act is done.

It appears, therefore, that Justice Washington’s

reference to laws “relat{ing) to the offense or

its consequences” was simply shorthand for

legal changes altering the definition of an offense

or increasing a punishment. His jury charge

should not be read to mean that the Constitu-

tion prohibits retrospective laws, other than

those encompassed by the Calder categories,

which “alte[r] the situation of a party to his

disadvantage.” Nothing in the Hall case sup-

ports the broad construction of the ex post

facto provision given by the Court in Kring.

It is possible to reconcile Kring with the nu-

merous cases which have held that “proce-

dural” changes do not result in ex post facto

violations by saying that the change in Mis-

souri law did take away a “defense” available

to the defendant under the old procedure. But

this use of the word “defense” carries a mean-

ing quite different from that which appears in

the quoted language from Beazell, where the

term was linked to the prohibition on altera-

tions on “the legal definition of the offense” or

“the nature or amount of the punishment

imposed for its commission.” The “defense

available to Kring under earlier Missouri law

was not one related to the definition of the

crime, but was based on the law regulating the

effect of guilty pleas. Missouri had not changed

any of the elements of the crime of murder, or

the matters which might be pleaded as an

excuse or justification for the conduct under-

lying such a charge; it had changed its law

respecting the effect of a guilty plea to a lesser

included offense. The holding in Kring can

only be justified if the Ex Post Facto Clause is

thought to include not merely the Calder cate-

ll

gories but any change which “alters the situ-

ation of a party to his disadvantage.” We think

such a reading of the Clause departs from the

meaning of the Clause as it was understood at

the time of the adoption of the Constitution,

and is not supported by later cases. We accord-

Id. At 497 US. at 49. Petitioner’s argument is no longer

viable and should be rejected by this court. The relevant issue

is whether the amendment increases the punishment at-

tached to the crime at the time Petitioner committed his

sional credits during his incarceration and these credits were

later taken away as a result of the amendment, Petitioner’s

sentence cannot be said to be increased. The sentence im-

posed was not made greater; the amendment merely restored

the status quo as it was at the time the crime was committed.

Morales concludes a series of cases which have upheld the

initial concept of the ex post facto clause. In Morales, the

Court considered a statute which provided a change for

inmates in the frequency with which they would be provided

with parole hearings. The Court held that this amendment

created only the “most speculative and attenuated possibility

of increasing the measure of punishment for covered crimes”

and therefore was not of the degree necessary to violate the

ex post facto clause.

The amici states would urge the Court to uphold this

concept of punishment which looks at the purpose and effect

of the statute, while at the same time upholding the right this

Court has reserved to the states to manage and control the

criminal justice system and prisons within their states. As

this Court noted recently in Lewis v. Casey, _US.__, 116

S.Ct. 2174 (1996), a case involving an inmate’s constitutional

right of access to courts:

12

a

—— ee =

The District Court made much of the fact that

lock d tine) i

lays in receiving legal materials or legal assis-

tance, some as long as 16 days, but so long as

they are the product of prison regulations

reasonably related to legitimate penological

interests, such delays are not of constitutional

significance, even where they result in actual

injury (which. of the District Court did

not find here).

Second, the injunction imposed by the District

Court was inordinately—indeed, wildly—in-

trusive. There is no need to belabor this point.

One need only read the order, to appreciate

that it is the ne plus ultra of what our opinion

have lamented as a court’s “in the name of the

Constitution, becom[ing]...enmeshed in the

minutiae of prison operations.”

Finally, the order was developed through a

process that failed to give adequate considera-

tion to the views of state prison authorities.

We have said that “[t]he strong considerations

of comity that require giving a state court

system that has convicted a defendant the first

opportunity to correct its own errors...also

require giving the States the first opportunity

to correct errors made in the internal admini-

stration of their prisons.

Lewis at 2185.

This Court has long upheld the deference which must be

given the states in control of its prisons. See Turner v. Safley,

482 U.S. 78, 107 S.Ct. 2254 (1987) and Beil v. Wolfish, 441

US. 520, 99 S.Ct. 1861 (1979). Courts have “accorded wide-

ranging deference [to prison administrators] in the adoption

and execution of policies and practices that in their judgment

13

are needed to preserve internal order and discipline and to

maintain institutional security.” Bell, 441 U. S. at 547. Such

deference is especially appropriate with respect to the pri-

mary state interest of peace and security within the prison

facility. Pell v. Procunier, 417 U.S. 817, 94S. Ct. 2800 (1974).

The justification for this deference include the complexity of

prison management, the fact that responsibility therefore is

necessarily vested in prison officials, and the fact that courts

are ill-equipped to deal with such problems. Procunier v.

Martinez, 416 US. 396, 94 S.Ct. 1800 (1974). In Bell v.

Wolfish, the Court again spoke of the “wide-ranging defer-

ence” to be accorded the judgment of prison officials when

dealing with security concerns:

Such considerations are peculiarly within the

province and professional expertise of correc-

tions officials, and, in the absence of substan-

tial evidence in the record to indicate that the

officials have exaggerated their response of

these considerations, courts should ordinarily

defer to their expert judgment.

Bell, 441 US. at 547-48 (quoting Pell, 417 U.S. at 827).

It is this deference which we now ask this Court to uphold

in this area of prison overcrowding—an issue of critical

importance to the amici states. Prison overcrowding has been

a major problem throughout the states for the last decade

and has brought about protracted litigation, great expense,

and concern to the states. The states have adopted various

mechanisms to control this overcrowding at additional cost

and an increased threat to the safety of citizens in these

states. On a number of occasions, these mechanisms, adopted

to relieve the prison overcrowding, have resulted in the loss

of innocent life at the hands of dangerous criminals released

too early through these mechanisms. It is with these grave

concerns that the amici states urge this court to uphold the

test which will focus on both the purpose and the effect, while

14

giving deference to the penological interests articulated by

the states.

As the Court noted in Morales, the essence of ex post facto

is that the person is put on notice before he is punished.

Where the statute is remedial and where the sting of punish-

ment is so speculative and remote, it cannot be said to be

punishment or that the inmate has a reasonable expectation

of such incidental benefit. The provisional credit provision at

issue in this case is an emergency mechanism enacted strictly

to be used by state prison officials when and to the extent

necessary to relieve prison overcrowding. It was not a man-

datory provision such as the gain time provisions seen in

Weaver v. Graham, 450 US. 24, 101 S.Ct. 960, 67 L.Ed.2d 17

(1981),” nor was it automatically part of the sentencing

formula calculated upon entry into the Department of Cor-

rections. It was strictly an emergency mechanism to be used

at the discretion of the prison officials. The inmate had no

expectation of such credits upon entry into the system and

any benefit or disadvantage can only be seen as incidental to

the emergency of prison overcrowding at which the statute

was aimed.

Although the provisional credit statute was initially mis-

takenly applied by the Department of Corrections to various

classes of inmates on some occasions, this mistake was soon

brought to the attention of the Florida Attorney General

2 Weaver does not address the issue of deference. The amici states

would urge this court to revisit Weaver and the related cases in light of this

deference issue. Many of these early release mechanisms have resu/ted in

serious crimes being committed by violent inmates being released too

early. Unfortunately, by the time such problems have been brought to the

attention of the state legislators, the courts have invalidated amendments

to correct such deficiencies as violative of the ex post facto clause. Such

results have failed to address the states interest in correcting such statu-

tory deficiencies in light of a legitimate penological interest. The amici

states would urge this Court to revisit these cases viewed in terms of the

exercise of a legitimate penological interest.

15

upon notification of the impending release of some of the

more violent inmates to which the legislature had not in-

tended such credits to apply. Upon receipt of notification, the

Attorney General corrected the error and subsequent reme-

dial legislation was adopted to correct this statute. This

action goes to the very essence of the state’s authority to

control its prison overcrowding while at the same time pro-

tecting the safety of its citizens. It is the exercise of the state’s

powers in response to a legitimate penological interest. To

hold otherwise would allow the inmate to create a liberty

interest through subjective intent while ignoring the purpose

and effect of the statute. It would also allow the inmate to

raise this constitutional provision to a higher level than any

other constitutional provision while other provisions must

yield to legitimate penological interests of the state. To allow

the inmate to create a liberty interest through such a specu-

lative remedial statute, merely because some incidental dis-

advantage may subsequently attach, is inconsistent with this

Court’s holding in Morales and the history of the ex post facto

clause.

CONCLUSION

For the foregoing reasons, the decision of the Eleventh

Circuit Court of Appeals should be affirmed.

Respectfully submitted,

FRANKIE SUE DEL PAPA

Attorney General of Nevada

ANNE B. CATHCART

Senior Deputy Attorney General

Litigation Division

OFFICE OF THE ATTORNEY GENERAL

Capitol Complex

Carson City, NV 89710

(702) 687-4170

COUNSEL FOR AMICUS CURIAE

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